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5 Questions: Law Professor Richard Briffault on Voter ID Laws

October 05, 2016

The last seven years have seen a slew of state laws enacted that require voters to have government-issued identification to combat in-person voter fraud. That, in turn, has set up a series of challenges to those laws, many of which have been scaled back or overturned by federal courts. Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, discusses the laws and the challenges to them—and their effect on this year’s presidential election.

Q.What role will voter ID laws have in this election?

A. They probably won’t play a big role in 2016, in part because of the status of several lawsuits on the issue. The strictest, enacted in North Carolina, was struck down by a federal appeals court in June; the U.S. Supreme Court deadlocked four-to-four on whether to hear the state’s appeal. Federal courts in Wisconsin, Ohio and Texas have also narrowed or thrown out some of the restrictions in those states’ voter ID laws.

Q.What did the appeals court find objectionable about the North Carolina law?

A. The state’s 2013 law required not just that voters have a photo ID, but it reduced early registration and ended same-day voter registration and preregistration. The court found that the North Carolina legislature did that with discriminatory intent, citing “smoking gun” evidence that showed lawmakers requested data on voting practices by race. They also noted that lawmakers started working on the voter ID bill one day after the U.S. Supreme Court struck down the 1965 Voting Rights Act requirement that certain states—including North Carolina—pre-clear any voting changes with the U.S. Justice Department.

Q.What is the current status of voter ID laws?

A. The Supreme Court has upheld the authority of states to require that voters present government-issued photo identification in order to vote. But there is an emerging consensus that there should be exceptions for those who don't have or can’t easily obtain one. Not everybody has a driver’s license, and some don’t keep a copy of their birth certificates; getting one often requires time and money. So the big issue is what kind of accommodations should be made for people in these situations. Separately, the U.S. Supreme Court split 4-4 on whether to hear North Carolina's appeal to reinstate its voter ID law, which means the state cannot enforce that particular law, but its legislature can re-enact it with different provisions. Other states could introduce similar laws in the future.

Q.Where is the line between what a legislature can and cannot do about voting access in their states?

A. States can adopt restrictions, like voter ID or shortening the period for early voting, that can affect access if the burden on access is not severe, and if the state has a reasonable justification. Of course, whether the burden is severe and whether the justification is reasonable in light of the burden will often be hotly contested, And certainly a state cannot act with a racially invidious purpose or if a court finds the restriction disproportionately affects racial minorities.

Q.Are voter ID laws necessary?

A. The usual argument for voter ID laws is that they help prevent in-person voter fraud, that is, someone showing up at a polling place and falsely claiming to be someone who is registered there. All studies, by academics, the media, and law enforcement agencies,have concluded that in-person voter fraud is almost nonexistent. There are election-related frauds, but in-person voter fraud, which is the only problem that voter ID addresses, is an extremely tiny problem.